Thursday, October 18, 2012

There have been some concerns raised about the way the new “Municipal Complex Bylaw 38M2012” may restrict protest outside Calgary’s City Hall and Municipal Building downtown. (You can download a PDF of the bylaw. If the filename comes up as “DirectDownload.aspx” just change the name to end in “.pdf”, and hope that The City eventually fixes that problem on their website.)

Please keep in mind that I am not a lawyer (although I play one on the Internet :-) ).

Update:

Since I posted this, friendly City Councillor Brian Pincott has informed me that the old bylaw required a permit for any use of the Municipal Plaza. The new bylaw takes away that requirement, actually making it more accessible to protest.

I honestly had no idea of that particular old rule—and violated it at least dozens of times with permit-less rallies there. (Which illustrates the general leniency of bylaw enforcement in a lot of—but certainly not all—cases.)

Is the Bylaw trying to outlaw protest?

I suspect that people expressing concern about this bylaw “banning protest” may have seen the part restricting protest inside the building. That does not apply to the exterior of the building (notably, “Municipal Plaza” and the sidewalk—which are where all of the countless protests I’ve participated in there have been held).

It’s important to note that the inside of the “Municipal Building” and City Hall, like with all buildings, have been restricted from protest demonstrations for at least as long as I am aware of, so this does not change that.

What is changing for protests?

One significant provision the bylaw introduces, that I don’t recall being in place before, is that, during business hours, no bullhorns or other sound equipment can be used without approval.

(As a matter of pure speculation on my part, I’m guessing that this provision is a result of the religious evangelists who relentlessly, noisily, set up right outside City Hall many times every week.)

What was already restricted?

In addition to restricting amplified sound, some other notable restrictions that can affect protests (all of which were previously in place, if I recall correctly) include:

Candles are restricted under the fire restrictions (no candlelight vigils without express prior approval in writing). Exception for religious ceremonies (so no ban on smudges).

No free-standing signage (e.g., placards we carry are okay but no sandwich boards set up on the ground).

Not permitted to engage in “event” activities on areas designated as memorials (such as the police memorial that obstructs a big chunk of the Plaza).

Not permitted to engage in “events” there overnight between 11pm and 7am.

The municipal plaza may be booked by groups (or The City) for events. When booked, it is designated as “exclusive use” and other activities will not be permitted. We should still be able to make reasonable use of the public sidewalks in those cases, provided we don’t interfere with the booked event.

There is a generic grant of authority to the “Complex Manager” to arbitrarily declare activities as prohibited (10.2.d). I would not expect this to impact most protests — except in cases where there is apparent or actual threat of violence, significant obstruction of individual access to the municipal facilities, or people engaging in offensive/lewd activities.

There is an interesting bit I believe they got wrong. The Bylaw includes the public sidewalk as part of the “Municipal Complex” and subject to the restrictions set forth in the Bylaw. Given what seem to be relevant precedents up to the Supreme Court level, I would not expect that to hold up in court if they tried to restrict “reasonable” protest on—and general public access to—the sidewalk.

However, there is also precedent for mass events (such as concerts and festivals) to be reasonable restriction of access to public space. So, it is legal to restrict protest and other use in those public spaces that are temporarily occupied by such an event (like when the New Year’s Eve celebration blocks off Macleod Trail and adjoining sidewalks between City Hall and Olympic Plaza).

Restrictions against gathering on the steps

Here is something that could potentially affect us: In the maps at the end of the Bylaw, you can see that they define all of the steps and ramp areas as “Entrance/Exit zones” and prohibit gathering in those areas entirely (10.3.a).

I’m thinking, in particular, of the steps adjacent to the sidewalk that are immediately north of the main ramp to the municipal building, since we have countless times used those as a position for people to address a crowd.

In spite of that definition and restriction, my expectation (given what has gone on before both at the “Municipal Complex” and other government sites) would be that we would generally continue to be able to make general use of those areas outside business hours so long as such use did not significantly impair access to the site for non-participants. During business hours, we could probably make limited use of those areas unless things were “quite busy”.

In any case, the provision does give the City clear grounds to direct us away from those “Entrance/Exit zones” as they may choose.

Summing up

All in all, given past experience, after an initial read-through, I do not expect the changes and additions in this bylaw to notably impact most protest actions around the municipal building and city hall.

There could be cases where they call for a shutdown of use of bullhorns or p.a. systems—but I would be surprised if they use that much at all against protests (since, again, I’m guessing the primary reason for that is not protests, but the noise from the noisy religious evangelists who set up right outside City Hall annoying the City Council members in their offices there). In any case, legal restrictions governing amplified sound were already in place, so I don’t see the bylaw changing that for us.